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[Federal Register Volume 89, Number 248 (Friday, December 27, 2024)]
[Rules and Regulations]
[Pages 105456-105459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30536]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2024-0372; FRL-12293-02-R10]

Air Plan Approval; WA; Excess Emissions, Startup, Shutdown, and 
Malfunction Revisions, Energy Facility Site Evaluation Council

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
Washington State Implementation Plan (SIP) revisions to the Energy 
Facility Site Evaluation Council (EFSEC) air quality regulations 
submitted by the State of Washington, through the Department of Ecology 
(Ecology) on June 15, 2023. The revisions were submitted in response to 
the EPA's June 12, 2015 ``SIP call'' in which the EPA found 
substantially inadequate a Washington SIP provision providing 
affirmative defenses that operate to limit the jurisdiction of the 
Federal court in an enforcement action related to excess emissions 
during startup, shutdown, and malfunction (SSM) events. The EPA's 
approval of the SIP revisions includes removal of the substantially 
inadequate provision which corrects the EFSEC deficiency identified in 
the 2015 SSM SIP call and the EPA's January 2022 finding of failure to 
submit. Washington withdrew some portions of the revisions submitted 
that were not identified in the 2015 SSM SIP call and therefore the EPA 
is not approving those withdrawn portions.

DATES: This final rule is effective January 27, 2025.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R10-OAR-2024-0372. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information the disclosure 
of which is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available at https://www.regulations.gov, or please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information.

FOR FURTHER INFORMATION CONTACT: Randall Ruddick, EPA Region 10, 1200 
Sixth Avenue (Suite 155), Seattle, WA 98101, (206) 553-1999; or email 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' or 
``our,'' is used, it refers to the EPA.

Table of Contents

I. Background
II. Public Comment and the EPA's Response
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    On October 22, 2024 (89 FR 84322), the EPA proposed to approve 
State Implementation Plan (SIP) revisions to

[[Page 105457]]

the Energy Facility Site Evaluation Council (EFSEC) air quality 
regulations submitted by the State of Washington, through the 
Department of Ecology (Ecology) on June 15, 2023. In that proposal, we 
also proposed to determine that one of the SIP revisions, the removal 
of EFSEC's adoption by reference of WAC 173-400-107, corrects the 
deficiency with respect to EFSEC that we identified in our June 12, 
2015 action entitled ``State Implementation Plans: Response to Petition 
for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable 
to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction'' \1\ (``2015 SSM SIP call'') and our January 
12, 2022, Findings of Failure to Submit \2\ (FFS). The remaining SIP 
revisions submitted with the removal of EFSEC's adoption by reference 
of WAC 173-400-107 on June 15, 2023, were not specified in the 2015 SSM 
SIP call. The reasons for our proposed approval and determination can 
be found in the proposed action and will not be fully restated here. 
The public comment period closed on November 21, 2024. We received one 
comment outside the scope of our proposed action; therefore, we are 
finalizing our action as proposed.
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    \1\ 80 FR 33839, June 12, 2015.
    \2\ Findings of Failure To Submit State Implementation Plan 
Revisions in Response to the 2015 Findings of Substantial Inadequacy 
and SIP Calls To Amend Provisions Applying To Excess Emissions 
During Periods of Startup, Shutdown, and Malfunction, 87 FR 1680 
(January 12, 2022), available at https://www.regulations.gov, Docket 
ID No. EPA-HQ-OAR-2021-0863.
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II. Public Comment and the EPA's Response

    Comment: The commenter appears to support the EPA finalizing 
approval of revisions to EFSEC's regulations but voiced concern about 
the amount of time it took to get to this approval from issuance of the 
2015 SSM SIP call. The commenter also raised concerns about 
implementation ``of the statute'' and the allowance of ``significant 
pollutant emissions despite the good-faith intentions of both Federal 
and state agencies.'' The commenter went on to suggest ``New rules 
surrounding revision timelines could help effectively allocate agency 
efforts in the exercise of its authority while retaining the necessary 
period for due process and public participation.
    Response: The EPA acknowledges the commenter's concerns. However, 
the concerns raised by the commenter are outside the scope of this 
action. Moreover, the commenter does not indicate that the EPA's 
proposed approval action of the SIP submission should be changed or 
should not be finalized as proposed. Rather, the comment appears to 
support finalizing the proposed approval. Therefore, we are finalizing 
our action as proposed.

III. Final Action

    The EPA is approving and incorporating by reference in the 
Washington SIP the revisions Washington submitted on June 15, 2023, 
except for those withdrawn by Washington.\3\ This action includes 
removal of the adoption by reference of WAC 173-400-107--the provision 
identified as inconsistent with Clean Air Act (CAA) requirements in our 
2015 SSM SIP call--from the EFSEC air quality regulations contained in 
Chapter 463-78 Washington Administrative Code (WAC) General and 
Operating Permit Regulations for Air Pollution Sources.
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    \3\ See 201_state submittal supplement_EFSEC Partial Withdrawal 
Request Letter--Ecology.pdf and 202_state submittal supplement_EFSEC 
Partial Withdrawal Request Letter--EFSEC.pdf included in the docket 
for this action.
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    Once this action becomes effective, the Washington SIP will no 
longer include the following regulations for EFSEC's jurisdiction:
     WAC 173-400-070, Emission Standards for Certain Source 
Categories--sets forth maximum allowable standards for emissions units 
within the categories listed;
     WAC 173-400-107, Excess Emissions--established a pathway 
to determine excess emissions unavoidable, excuse them from penalty, 
and in certain instances precluded them from being considered 
violations.
    This action also approves and incorporates by reference at 40 CFR 
52.2470(c)--Table 3--Additional Regulations Approved for the Energy 
Facilities Site Evaluation Council (EFSEC) Jurisdiction, the following 
revised regulations:
     WAC 463-78-005(2), Adoption by Reference (State effective 
August 28, 2020)--which adopts certain regulations in Chapter 173-400 
WAC by reference.
    The revised Chapter 173-400 WAC provisions approved for EFSEC's 
jurisdiction are:
     WAC 173-400-030, Definitions (State effective September 
16, 2018)--which establishes definitions used throughout Chapter 173-
400 WAC;
     WAC 173-400-081, Emission Limits during Startup and 
Shutdown (State effective September 16, 2018)--which establishes 
pathway for developing emissions limits that apply during startup and 
shutdown;
     WAC 173-400-082, Alternative Emission Limit That Exceeds 
an Emission Standard in the SIP (State effective September 16, 2018)--
which establishes pathway for an owner or operator to request an 
alternative emissions limit;
     WAC 173-400-136 Use of Emission Reduction Credits (ERC) 
(State effective December 29, 2012)--which identifies permissible use 
and sets certain conditions of use of ERCs;
     WAC 173-400-171 Public Involvement (State effective 
September 16, 2018)--which sets forth certain requirements for public 
involvement.
    These SIP revisions apply specifically to the jurisdiction of the 
Washington State Energy Facility Site Evaluation Council.

IV. Incorporation by Reference

    In this document, the EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with requirements of 
1 CFR 51.5, the EPA is finalizing the incorporation by reference as 
described in section III of this preamble. The EPA has made, and will 
continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information). Therefore, these materials have 
been approved by the EPA for inclusion in the SIP, have been 
incorporated by reference by the EPA into that plan, are fully 
federally enforceable under sections 110 and 113 of the Clean Air Act 
as of the effective date of the final rule of the EPA's approval, and 
will be incorporated by reference in the next update to the SIP 
compilation.\4\
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    \4\ 62 FR 27968 (May 22, 1997).
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    Also in this document, the EPA is removing regulatory text from 
incorporated by reference, as described in section III. of this 
preamble.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:

[[Page 105458]]

     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 
2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a State program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA.
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
The EPA defines EJ as ``the fair treatment and meaningful involvement 
of all people regardless of race, color, national origin, or income 
with respect to the development, implementation, and enforcement of 
environmental laws, regulations, and policies.'' The EPA further 
defines the term fair treatment to mean that ``no group of people 
should bear a disproportionate burden of environmental harms and risks, 
including those resulting from the negative environmental consequences 
of industrial, governmental, and commercial operations or programs and 
policies.'' The air agency did not evaluate environmental justice 
considerations as part of its SIP submittal; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. The EPA did not perform an EJ analysis and did not consider 
EJ in this action. Due to the nature of the action being taken here, 
this action is expected to have a neutral to positive impact on the air 
quality of the affected area. Consideration of EJ is not required as 
part of this action, and there is no information in the record 
inconsistent with the stated goal of Executive Order 12898 of achieving 
environmental justice for communities with EJ concerns.
    The SIP is not approved to apply on any Indian reservation land in 
Washington except as specifically noted below and is also not approved 
to apply in any other area where the EPA or an Indian Tribe has 
demonstrated that a Tribe has jurisdiction. In those areas of Indian 
country, the rule does not have Tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
impose substantial direct costs on Tribal governments or preempt Tribal 
law. Washington's SIP is approved to apply on non-trust land within the 
exterior boundaries of the Puyallup Indian Reservation, also known as 
the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement 
Act of 1989, 25 U.S.C. 1773, Congress explicitly provided State and 
local agencies in Washington authority over activities on non-trust 
lands within the 1873 Survey Area.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: December 17, 2024.
Daniel Opalski,
Acting Regional Administrator, Region 10.

    For the reasons set forth in the preamble, 40 CFR part 52 is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart WW--Washington

0
2. In Sec.  52.2470, in paragraph (c), amend table 3 by:
0
a. Revising entries ``78-005'' and ``173-400-030'';
0
b. Removing entries ``173-400-030(30) & (36)'' and ``173-400-070'';
0
c. Revising entry ``173-400-081'';
0
d. Adding entry ``173-400-082'' in numerical order;
0
e. Removing entry ``173-400-107''; and
0
f. Revising entries ``173-400-136'' and ``173-400-171''.
    The revisions and additions read as follows:

Sec.  52.2470   Identification of plan.

* * * * *
    (c) * * *

 Table 3--Additional Regulations Approved for the Energy Facilities Site Evaluation Council (EFSEC) Jurisdiction
              [See the SIP-approved provisions of WAC 463-78-020 for jurisdictional applicability]
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                                                         State
       State citation            Title/subject      effective date    EPA approval date         Explanations
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   Washington Administrative Code, Chapter 463-78--General and Operating Permit Regulations for Air Pollution
                                                     Sources
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78-005.....................  Adoption by Reference         8/28/20  12/27/24, [INSERT      Subsection (2) only.
                                                                     FIRST PAGE OF          See below for the
                                                                     FEDERAL REGISTER       updated Chapter 173-
                                                                     CITATION].             400 WAC provisions
                                                                                            adopted by reference
                                                                                            and submitted to the
                                                                                            EPA for approval.
 

[[Page 105459]]

 
                                                  * * * * * * *
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    Washington Administrative Code, Chapter 173-400--Regulations Incorporated by Reference in WAC 463-78-005
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                                                  * * * * * * *
173-400-030................  Definitions..........         9/16/18  12/27/24, [INSERT      Except: 173-400-
                                                                     FIRST PAGE OF          030(96).
                                                                     FEDERAL REGISTER
                                                                     CITATION].
 
                                                  * * * * * * *
173-400-081................  General Standards for         9/16/18  12/27/24, [INSERT
                              Maximum Emissions.                     FIRST PAGE OF
                                                                     FEDERAL REGISTER
                                                                     CITATION].
173-400-082................  General Standards for         9/16/18  12/27/24, [INSERT
                              Maximum Emissions.                     FIRST PAGE OF
                                                                     FEDERAL REGISTER
                                                                     CITATION].
 
                                                  * * * * * * *
173-400-136................  Use of Emission              12/29/12  12/27/24, [INSERT
                              Reduction Credits                      FIRST PAGE OF
                              (ERC).                                 FEDERAL REGISTER
                                                                     CITATION].
 
                                                  * * * * * * *
173-400-171................  Public Notice and             9/16/18  12/27/24, [INSERT      Except: The part of
                              Opportunity for                        FIRST PAGE OF          173-400-171(3)(b)
                              Public Comment.                        FEDERAL REGISTER       that says, 
                                                                     CITATION].             ``or any increase in
                                                                                            emissions of a toxic
                                                                                            air pollutant above
                                                                                            the acceptable
                                                                                            source impact level
                                                                                            for that toxic air
                                                                                            pollutant as
                                                                                            regulated under
                                                                                            chapter 173-460
                                                                                            WAC''; 173-400-
                                                                                            171(12).
 
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[FR Doc. 2024-30536 Filed 12-26-24; 8:45 am]
BILLING CODE 6560-50-P
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